Pittsburgh Settles FLSA Overtime Suit By Officers

The city of Pittsburgh has settled a class action lawsuit filed in federal court by fire officers claiming they were wrongfully denied overtime compensation.

The suit was originally brought last August by Deputy Chief Harry Scherer, Battalion Chief Robert Cox and Captain Edmund J. Farley under the Fair Labor Standards Act (FLSA). The officers claim they were wrongfully denied overtime for hours worked in excess of 212 in a 28 day period (or an average of 53 hours per week).

The city’s position was the officers were exempt supervisory employees ineligible for overtime. However, under revisions to the FLSA in 2004, virtually all line firefighting positions must be treated as hourly positions.

Over fifty other fire fighters subsequently joined the suit. The case was recently assigned for mediation prior to the settlement being announced. The exact terms of the settlement have not been released, nor do they appear in any court documents.

The suit sought back pay going back three years, the maximum FLSA allows recovery for. The city had settled a similar lawsuit in 2011 filed by police officers, paying more than $900,000 in penalties and attorneys’ fees.

The department has been in the news lately as local officials struggle to cope with overspending on overtime. Given that the department is 140 firefighters short, the overtime problem should come as no surprise. Of course that does not stop some politicians from placing the blame on the firefighters…

Comments - Add Yours

Dave LeBlanc

And yet most employers would rather pay the overtime than hire new positions that come with employee benefit cost over the salary amount.

It can be a wicked Catch-22 where the municipality will not hire the positions to staff correctly, forcing the overtime issue and then in turn blame the firefighters for taking the overtime and causing the increased overtime expenditure.

http://firelawblog.com Curt Varone

Dave

I know – but they should be honest with the taxpayers. They want to save money by using overtime rather than hiring new firefighters. That makes sense in many cases and politicians who choose to do that – take a bow. It works.

What we have are politicians who on the one hand want to be perceived as being shrewed business people, and also viewed as being pro-taypayer – and the way they do that is to beat up on the employees who actually take the overtime.

It's bizzaro-world – and I lived it – where the city tells firefighters – we need you to work this overtime (in some cases we force you to work the overtime under threat of discipline) – and then we are going to criticize you publically for taking it… accuse you of ripping off the taxpayers!!!!

John

Would the professional exemption apply to and inspector, engineer, investigator, fire marshal, etc who is employed in a fire department? Wage and Hour have stated that Fact sheet 8 and 17a are conclusive that while exempt, the public entity is not exempt in their obligation to compensate for overtime.

The exemptions also do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

http://firelawblog.com Curt Varone

John

If the positions you mention do not respond to emergencies (ie. they do not meet the definition of firefighters) – then the more traditional tests for professional or executives would have to be used. Under the traditional tests they look at whether these positions are paid on a salary basis (ie. are they paid by the hour, or are they salaried – mindful that folks on a salary can go home early/come in late without penalty) and their work meets the requirements of an executive, professional or administrative employee.

I think you can make the case that the fire marshal (ie the head of the fire prevention division), and if the department hires a fire protection engineer – the FPE are exempt – assuming they salary test is met. It would be a harder case to make for a fire inspector who is likely paid by the hour and does not supervisor or direct anyone. I suppose they possibly could be considered “professional”… but that could be a stretch.

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About Curt Varone

Curt Varone has over 41 years of fire service experience and 29 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.